EXPLAINER

Driver’s Licenses and Undocumented Immigrants by Kendra Sena*

I. Background The Government Law Center’s explainers concisely map out the law that applies to Until the 1990s, states did not explicitly important questions of public policy. prohibit undocumented drivers from getting This explainer was updated on Jul. 15, 2019. driver’s licenses. In 1993, passed the nation’s first law requiring that driver’s Introduction license applicants prove their lawful status.1 Since then, all but 15 jurisdictions have The issuance of driver’s licenses is a state limited driver’s licenses to those with legal function. Each state is responsible for status.2 But the issue remains a contentious determining the requirements to acquire a one, with advocates on both sides urging license in that state, including proofs of state legislatures to act. In light of the identity and residency. In June 2019, New federal REAL ID Act of 2005, numerous York became the 13th state to pass a law states across the country are amending their granting driver’s licenses to undocumented driver’s license laws and regulations. While immigrants. Still, local governments some state bills propose to permit access to responsible for issuing the licenses have driver’s licenses for undocumented raised significant opposition—some immigrants, others seek to further limit expressing intent to defy the law and sue the access to driver’s licenses, or to repeal state. This explainer will outline the legal previously enacted legislation permitting basis for extending driving privileges to undocumented drivers to be licensed by the undocumented immigrants, including the state.3 limitations on states imposed by the federal As states decide how to respond to the REAL ID Act, and will highlight some of the reality of undocumented drivers, lawmakers policy issues raised by state and local must consider the limits imposed by federal lawmakers. law and the ample room left for the exercise of policy discretion.

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DRIVER’S LICENSES AND UNDOCUMENTED IMMIGRANTS: AN EXPLAINER

II. How does federal law limit eligible for “drive-only licenses,” and must states’ control over driver’s sign an affidavit that they will obtain legal status when they are eligible.8 In , licenses? “driving privilege cards” for undocumented The REAL ID Act of 2005 set certain drivers are valid for only one year and 9 standards for state-issued identity cannot be used for identification. documents that are used for federal In 2014, the U.S. Department of Homeland purposes, such as boarding a plane or Security (DHS) rejected California’s design entering a military base. The law requires for its two-tiered driver’s licenses. The state that applicants for identity documents proposed that the REAL ID-compliant cards provide paperwork that proves their lawful would display the letters “DL” for “driver’s status in the . States must license,” while the non-compliant cards verify that the applicant has lawful status, would display the letters “DP” for “driving which can take one of many forms: U.S. privilege,” and include language on the back citizenship; legal permanent residency (i.e., of the card to indicate that the card was not a “”); temporary visitor or work sufficient for federal purposes. The federal visas; refugee status and asylum; temporary government argued that the markings were protected status (TPS); and deferred action insufficient to allow federal agents to quickly 4 (e.g., DACA), among others. The REAL ID distinguish the cards.10 The state changed Act requires that the state-issued cards the design; REAL ID-compliant cards now display specified information about the display a grizzly bear and a star on their cardholder and contain security features to face, while non-compliant cards display prevent tampering, counterfeiting, or “FEDERAL LIMITS APPLY.”11 duplication.5

The law anticipates that some states will choose to implement a multi-tiered system, issuing both REAL ID-compliant and non- compliant IDs.6 It specifies that non- compliant IDs must be distinguishable from compliant ones, but leaves it up to the states to determine how the IDs will be distinguished.

Policies vary among the states that have adopted measures permitting undocumented drivers to obtain driver’s licenses. In the state of , for example, all drivers are issued the same standard license regardless of status; U.S. citizens may opt for a license that complies with the federal REAL ID Act.7 In , undocumented drivers are Images: CA Dept. of Motor Vehicles

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III. How does law The federal government has implemented operate within the federal the REAL ID Act incrementally over the last framework? several years. The most visible phase of the plan, in which only REAL ID-compliant New York began issuing REAL ID-compliant identification will be sufficient to board a driver’s licenses in 2017. The state employs plane, will be fully implemented in the year a multi-tier system, as permitted by federal 2020.12 People with non-compliant IDs will law, and offers three licenses: have to show other acceptable forms of identification for federal purposes. (1) the “enhanced” license, which is used for identification, driving, for air travel and Compliance with the REAL ID Act is entering federal property, and for voluntary. States will not be penalized if entering the U.S. from a foreign country. they choose not to comply, though residents Displayed on its face is a flag; of those states may not like the extra burden of showing additional identification for (2) The “REAL ID” license, which is used for federal purposes. As of this writing, DHS identification, driving, and for air travel has certified 49 states and territories as and entering federal property. Displayed compliant with REAL ID, and the remaining on its face is a star; and 7 have been granted extensions for (3) the “standard” license, which is used for 13 compliance. identification purposes and for driving, Still, even compliant jurisdictions have but is not REAL ID-compliant. Displayed chosen not to implement all of the terms of on its face are the words, “NOT FOR the REAL ID Act. One of the law’s more FEDERAL PURPOSES.” controversial provisions requires each state to share its driver’s license database with every other state. The law requires states to “provide electronic access to all other States to information contained in the motor vehicle database of the State.”14 Each state’s database, at a minimum, must include “all data fields printed on drivers’ licenses and identification cards issued by the State” as well as “motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on licenses.”15 At the time of this writing, only 25 out of 56 jurisdictions have chosen to adopt the database-sharing provision.16

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Department of Motor Vehicles to require that applicants for driver’s licenses present either a valid or federally issued documents establishing legal presence.18 Undocumented immigrants cannot provide either, and thus cannot obtain driver’s licenses. The state will issue licenses to New York residents who have social security numbers, including legal permanent residents (i.e., “green card” holders) and those with temporary visitor or work visas.

IV. Policy Issues: New York

Undocumented immigrants account for a significant number of unlicensed drivers in New York. The Fiscal Policy Institute estimated that there are approximately 752,000 undocumented immigrants over the age of 16 in New York.19 The majority— 70%—live in New York City, where residents have greater access to public transportation and are less likely to need a driver’s license.20 But for undocumented immigrants outside of New York City, the effects of being unable to obtain a license are severe.

Despite a multi-tiered system that includes Limited public transportation outside of New non-compliant IDs, undocumented York City makes driving a daily necessity to immigrants were not eligible for driver’s access work, school, medical facilities, and licenses in New York until a law signed in other services. And in rural upstate New 17 2019. While nothing in New York law York, farms and other agribusinesses rely on required legal status in order to obtain a undocumented workers who often travel standard driver’s license, a 2001 executive long distances to work.21 The result is a order issued by then-Governor George significant number of New York drivers who Pataki created a rule that effectively are unlicensed and uninsured. prevented undocumented people from obtaining licenses. In 2007, then-Governor issued an executive order that would allow The order, which will be overturned when undocumented immigrants to access driver’s the 2019 law takes effect later in the year, licenses. Amid strong backlash, he directs the state’s Commissioner of the rescinded the order only two months later.

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In subsequent years, state legislators have level. Unlike in most states, where driver’s introduced bills seeking to overturn the licenses are issued by state agencies, in New Pataki-era rule and codify access to state York many Department of Motor Vehicles driver’s licenses for undocumented offices are operated by independently- immigrants. The most recent proposal, elected county clerks.25 A number of county signed into law in 2019, will make standard clerks have expressed their intent to defy the driver’s licenses available to qualified New law and refuse to issue the licenses to newly York residents without regard to eligible immigrants.26 As of this writing, one immigration status.22 county clerk has filed suit, claiming that the law conflicts with federal immigration law The law also aims to protect the privacy of that makes it a crime to conceal, harbor, or applicants for the licenses by disallowing the shield from detection a person in the United agency from recording on its application States illegally. 27 At least one other county form what documents were used to prove clerk 28 and a county executive29 each identity, or whether the applicant is expressed their intent to sue the state over ineligible for a social security number.23 the law. They also specify that the driver’s license database employed by the state may not be Conclusion made available to a third party,24 likely a response to the state-to-state database Driver’s licenses remain within the purview sharing proposed by the REAL ID Act but of the states, but with the widespread which New York has not adopted. adoption of the REAL ID Act, the federal The law does not propose to extend government has imposed significant additional rights to undocumented restrictions on states that choose to adopt it. immigrants who obtain a New York driver’s But as New York and other states are rolling license. The licenses would not, for out new driver’s license schemes to example, create a right to vote or access incorporate the REAL ID Act, they retain public benefits, or grant legal immigration significant policy discretion in the status. implementation—including whether to issue licenses to undocumented residents and how But the policy debate is far from over, and is the state will store and share the likely to play out at the local government information of the drivers it licenses.

Resources

For a useful guide to deferred action, DACA, TPS, and other discretionary statuses, see: Congressional Research Service, “An Overview of Discretionary Reprieves from Removal: Deferred Action, DACA, TPS, and Others,” (April 2018), available at: https://fas.org/sgp/crs/homesec/R45158.pdf For a comparison of the policy choices made by jurisdictions that currently license undocumented drivers, see:

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The PEW Charitable Trusts, “Deciding Who Drives: State choices surrounding unauthorized immigrants and driver’s licenses,” (August 2015), available at: https://www.pewtrusts.org/- /media/assets/2015/08/immigrationdecidingwhodrives.pdf

A Note on DACA

Recipients of the Deferred Action for Childhood Arrivals (DACA) program are eligible for driver’s licenses in every state.

The REAL ID Act itself lists deferred action as a lawful status that makes a person eligible for a REAL ID-compliant . (REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231; 49 U.S.C. s. 30301, Sec. 202, note (c)(2)(B) (defining “lawful status”)). And every state either expressly offers licenses to DACA recipients, or effectively does so by making licenses available to those with employment authorization and social security numbers, for which DACA recipients are eligible.

Two states, and , attempted to exclude DACA recipients from accessing driver’s licenses in those states. But in 2014, the Ninth Circuit upheld the lower court’s ruling striking down Arizona’s policy of denying licenses to DACA recipients (Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1059 (9th Cir. 2014)), and in 2015, with litigation pending against the state, the Nebraska state legislature passed a law—overriding a veto from the governor—that superseded that state’s exclusionary policy (L.B. 623, 140th Leg., 1st Sess. (Neb. 2015)).

Although DACA recipients are currently eligible for REAL ID-compliant driver’s licenses in all states, there is increasing uncertainty that the DACA program will survive. If that class of people falls out of eligibility for compliant licenses, it will be up to the states to decide whether it will issue non-compliant licenses to them.

Endnotes

* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School. Research assistance by Mehtasim Mahfuz and Michele Monforte.

1 S.B. 976, 1993-1994 Leg., Reg. Sess. (Cal. 1993).

2 Thirteen states plus Washington, D.C. and issue driver’s licenses regardless of immigration status. The thirteen states are: California, , Connecticut, , , , , , New , New York, Utah, , and Washington. National Immigration Law Center, “State Laws Providing Access to Driver’s Licenses or Cards, Regardless of Immigration Status,” (June 2019), available at: https://www.nilc.org/issues/drivers-licenses/state-laws-providing-dl-access/.

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3 Legislation regarding identify documents, driver’s licenses, and other IDs made up 9 percent of all enacted laws on immigration in the first half of 2018. This represents a decrease from prior years; legislation of this kind peaked in 2013. See, National Conference of State Legislatures, “Report on State Immigration Laws, January-June 2018,” (Oct. 2018), available at: http://www.ncsl.org/research/immigration/report-on-state-immigration- laws.aspx#ID's/Driver's%20Licenses%20and%20Other%20Licenses.

4 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231; 49 U.S.C. § 30301, Sec. 202, note (c)(2)(B) (defining “lawful status”).

5 Id. at note (b)(establishing minimum document requirements).

6 Id. at note (d)(11)(establishing guidelines for state-issued IDs that do not comply with the REAL ID Act).

7 H.B. 1444, 53rd Leg., 1993 Reg. Sess. (WA 1993), amended by S.B. 5008, 65th Leg., 2017 Reg. Sess. (WA 2017).

8 H.R. 6495, 2013 Gen. Assemb., Reg. Sess. (Conn. 2013), amended by H.R. 6366, 2015 Gen. Assemb., Reg. Sess. (Conn. 2015).

9 S.B. 227, 2005 Gen. Sess. (UT 2005), amended by S.B. 184, 2015 Gen. Sess. (UT 2015) and S.B. 129, 2016 Gen. Sess. (UT 2016).

10 Patrick Mcgreevy, “Feds reject design of driver's license for immigrants in U.S. illegally,” L.A. TIMES, May 5, 2014, available at: http://www.latimes.com/local/political/la-me-pc-feds-reject-design-of-drivers- license-for-illegal-immigrants-20140506-story.html.

11 For an annotated visual comparison of California’s cards, see https://www.dmv.ca.gov/portal/wcm/connect/0fb99220-0204-4967-8eb3- a101e5ad0464/DLID_Redesign.pdf?MOD=AJPERES .

12 U.S. Department of Homeland Security, Statement by Sec. J. Johnson (Jan. 8, 2016), available at: https://www.dhs.gov/news/2016/01/08/statement-secretary-jeh-c-johnson-final-phase-real-id-act- implementation.

13 U.S. Department of Homeland Security, “REAL ID,” available at: https://www.dhs.gov/real-id/. Note that this number includes 50 states and six major territories (D.C., , , , Puerto Rico, U.S. Virgin Islands), see: https://www.dhs.gov/news/2018/01/19/98-us- states-and-territories-track-compliance-ahead-real-id-deadline.

14 Supra note 4, at note (d).

15 Id.

16 The American Association of Motor Vehicle Administrators (AAMVA) maintains a list of jurisdictions that participate in the “State-to-State (S2S) Verification System,” which is the only system currently operating that meets the requirements of the REAL ID Act, available at https://www.aamva.org/State-to- State/. For more information about S2S, see: Joan Friedland, National Immigration Law Center, “Updates on REAL ID and Increased Information Sharing by Departments of Motor Vehicles,” January 2018, available at: https://www.nilc.org/news/the-torch/1-04-18/.

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17 A.B. 3675, 2019-20 Leg. Sess. (NY 2019), available at https://www.nysenate.gov/legislation/bills/2019/A3675; S.B. 1747, 2019-20 Leg. Sess. (NY 2019), available at https://www.nysenate.gov/legislation/bills/2019/s1747.

18 The rule survived a legal challenge in 2006, when the New York Court of Appeals ruled that the Commissioner has an “undisputed” right to insist on the specified documents. Cubas v. Martinez, 870 N.E.2d 133, 136 (N.Y. 2007). The rule also survived a political challenge in 2007 when then-Governor Eliot Spitzer proposed to undo it by executive order, only to step back from the position after a political firestorm. See Danny Hakim, “Spitzer dropping his driver’s license plan,” , Nov. 14, 2007.

19 David Dyssegaard Kallick and Cyierra Roldan, Fiscal Policy Institute, “Expanding Access to Driver’s Licenses,” (Jan. 2017), available at: http://fiscalpolicy.org/wp-content/uploads/2017/01/FINAL-Drivers- licenses-report-2017.pdf.

20 Id. The Fiscal Policy Institute calculated that of the eligible New York City residents, about 57% get driver’s licenses.

21 See, Liz Robbins, “Driving While Undocumented, and Facing the Risks,” THE NEW YORK TIMES, July 18, 2017, available at: https://www.nytimes.com/2017/07/18/nyregion/driving-illegal-immigration-trump- administration.html. 22 Supra note 17.

23 Id.

24 Id.

25 In 51 of the state’s 62 counties, the county clerk serves as an agent of the Commissioner of Motor Vehicles and is responsible for operating the Department of Motor Vehicles office and issuing driver’s licenses. See N.Y.S. Vehicle and Traffic Law s. 205. Excepted are the clerks of the counties of Rockland, Albany, Westchester, Suffolk, Nassau, Onondaga, Bronx, Kings, Queens, Richmond and New York.

26 Christina Goldbaum, “Rebellion by County Clerks Over N.Y. Licenses for Undocumented Immigrants,” THE NEW YORK TIMES, June 21, 2019, available at: https://www.nytimes.com/2019/06/21/nyregion/drivers- licenses-undocumented-ny.html.

27 Compl. ¶ 42, 45, Kearns v. Cuomo, et. al., No. 19 cv 902 (W.D.N.Y filed Jul. 8, 2019) (citing 8 U.S.C. § 1324).

28 See Jimmy Vielkind, “New York Clerk Sues Over Law Granting Driver’s Licenses to Illegal Immigrants,” WALL STREET JOURNAL, July 9, 2019, available at: https://www.wsj.com/articles/new-york- clerk-sues-over-law-granting-drivers-licenses-to-illegal-immigrants-11562705012.

29 Kevin Tampone, “Monroe County exec plans to sue over New York’s immigrant driver’s license law,” NEW YORK UPSTATE, June 19, 2019, available at: https://www.newyorkupstate.com/rochester/2019/06/monroe-county-exec-plans-to-sue-over-new-yorks- immigrant-drivers-license-law.html.

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